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Wednesday, April 22, 2020

No. 366: Voter Suppression by Wisconsin Republicans and the Conservative Majority of the U.S. Supreme Court

On April 7, 2020, Wisconsin held its primary election as scheduled in the midst of the COVID-19 pandemic. What happened was a dangerous, irresponsible case of voter suppression. Here I describe the incident.

The Wisconsin Primary
On the ballots were presidential preferences (Sanders withdrew after the primary), a Wisconsin Supreme Court seat held by a Republican whose reelection was supported by President Trump (the incumbent lost in the primary), an amendment to the Wisconsin Constitution, many local referenda, more than 100 other judgeships, and thousands of county, city, village, town, school district, and other positions.

On April 2, a Wisconsin federal district court judge extended by six days the deadline for receipt of absentee ballots and relaxed certain other requirements relating to absentee ballots. Republicans immediately appealed to the U.S. Seventh Circuit Court of Appeals, which allowed the federal district court judge's ruling to stand.

On April 3, Democratic Governor Tony Evers called a special session of the legislature to act on legislation to allow Wisconsin voters to vote safely by mail. On April 4, the legislature, without acting on the legislation, and with no discussion or debate, adjourned within seconds after convening.

The Governor's Executive Order
On April 6, Governor Evers, because of the COVID-19 pandemic, issued Executive Order #74 suspending in-person voting until June 9. The order is in the complimentary package offered at the end of this post.

The U.S. Supreme Court
After the Seventh Circuit allowed the federal district court judge's ruling to stand, the Republican National Committee asked the U.S. Supreme Court for a stay of the ruling. The Democratic National Committee opposed the stay. On April 6, the U.S. Supreme Court, in a 5-4 ruling, granted the stay. The application for a stay went initially to Justice Kavanaugh because he is the justice designated to receive applications after rulings emanating from the Seventh Circuit.

The Majority Opinion
It is not known who wrote the majority opinion, because it was issued Per Curiam, or "for the Court." Here, without citations, are the first paragraph, the first three sentences of the second paragraph, and the next-to-last paragraph of the majority opinion (the full majority opinion is in the complimentary package offered at the end of this post):

The application for stay presented to Justice Kavanaugh and by him referred to the Court is granted. The District Court's order granting a preliminary injunction is stayed to the extent it requires the State to count absentee ballots postmarked after April 7, 2020.

Wisconsin has decided to proceed with the elections scheduled for April 7, 2020. The wisdom of that decision is not the question before the Court. The question before the Court is a narrow, technical question about the absentee ballot process....

The Court's decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID-19 are appropriate. That point cannot be stressed enough.

The Dissenting Opinion
The dissenting opinion, also on April 6, was written by Justice Ginsburg. Justices Breyer, Sotomayor, and Kagan joined in the dissent. Here, without citations, are the first and last paragraphs of the dissenting opinion (the full dissenting opinion is in the complimentary package offered at the end of this post):

The District Court, acting in view of the dramatically evolving COVID-19 pandemic, entered a preliminary injunction to safeguard the ability of absentee voting in Wisconsin's spring election. The Court now intervenes at the eleventh hour to prevent voters who have timely requested absentee ballots from casting their votes. I would not disturb the District Court's disposition, which the Seventh Circuit allowed to stand....

The majority of this Court declares that this case presents a "narrow, technical question." That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court's order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority's stay in place, that will not be possible. Either they will have to brave the polls, endangering their own and others' safety. Or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance—to the constitutional rights of Wisconsin's citizens, the integrity of the State's election process, and in this most extraordinary time, the health of the Nation.

A Bill Introduced in the U.S. Senate
On March 18, 2020, U.S. Senator Klobuchar (D-MN) issued a press release announcing she and U.S. Senator Wyden (D-OR) had that day introduced the "Natural Disaster and Emergency Ballot Act" (NDEBA). The bill had 29 cosponsors—28 Democrats and one Independent (Sanders). The NDEBA was introduced amid confusion over whether the Ohio primary would be postponed, and over whether there would be delayed primaries in two other states. The introduction of the bill preceded the Wisconsin primary. The NDEBA would provide, among other things, expansion of early in-person voting and use of printable ballots currently available only to military and overseas voters. The press release is in the complimentary package offered at the end of this post.

General Observations
Rocket science is not needed to estimate the probability that the NDEBA will pass in the Republican-controlled Senate. The probability is zero. President Trump has said mass voting by mail would mean no Republican would ever be elected. Therefore, a veto-proof majority in the Senate would be needed.

Our nation has always engaged in voter suppression. One need look no further than Thomas Jefferson's lofty words about all men being created equal and consider what it took for women, former slaves, and others to win the right to vote.

For many years it was southern Democrats and the Ku Klux Klan who fought to suppress voting by African Americans. It is not hard to imagine the shock when a southern Democratic President named Lyndon Johnson rammed through Congress the Voting Rights Act of 1965. Since then, conservatives have succeeded in many efforts to weaken the law.

In recent years it has been the Republicans who have embraced voter suppression on the theory that they are more likely to win elections when voter turnout is small. The Wisconsin fiasco, where voters had to stand in long waiting lines six feet apart for hours in on-and-off rain and sleet will not be forgotten any time soon.

The Wisconsin primary is a precursor of what may happen in the November 2020 presidential election. Wisconsin Republicans have demonstrated they are willing to force voters to risk exposure to serious illness and even death to exercise their right to vote. What we may witness in November will be a brazen and irresponsible example of voter suppression.

A Recent News Story
In the morning on April 21, NBC News reporter Alex Seitz-Wald ran a story about the Wisconsin primary. Here is the opening sentence:

Officials have identified seven people [six voters and one poll worker] who appear to have contracted the coronavirus through activities related to the April 7 election in Wisconsin, Milwaukee's health commissioner said, and advocates worry it could be just the "tip of the iceberg."

Available Material
I am offering a complimentary 18-page PDF consisting of the Wisconsin governor's executive order (4 pages), the majority opinion in the U.S. Supreme Court (4 pages), the dissenting opinion in the U.S. Supreme Court (6 pages), and the press release about the NDEBA (4 pages). Email jmbelth@gmail.com and ask for the April 2020 package about the Wisconsin primary.